By Benita Heath | The Tribune
Published Tuesday, December 22, 2009
CHESAPEAKE — The man who was police chief at the time a Huntington, W.Va., bicyclist was Tasered and arrested has filed a motion that he be removed from the upcoming civil rights lawsuit.
Russell Bennett, former police chief for the village of Chesapeake, says he should be excluded from the suit filed in August by Huntington-based construction firm owner Anthony Patrick.
In mid-August 2008, Patrick and a juvenile who is a nationally ranked racer, were biking through Chesapeake as part of an endurance ride through Lawrence County before returning to Huntington, W.Va.
As they came through Chesapeake they contend they were stopped and Tasered by Lawrence County Sheriff’s deputy Charles Hammonds and Dennis Gibson, then a village patrolman and now Chesapeake Police Chief.
Patrick, then 37, was subsequently arrested and taken to the Lawrence County Jail, where he was charged with obstructing official business, resisting arrest, attempted assault on a police officer and operating a bike on the road.
He was later brought before Lawrence County Municipal Court where Judge Donald R. Capper granted Patrick’s motion that the officer had no probable cause for the arrest.
Three months later, the Lawrence County Prosecutor’s office dismissed the case.
A year after the incident Patrick filed a lawsuit in U.S. District Court Western Division naming current Lawrence County Sheriff Jeff Lawless, Hammonds, Gibson, Bennett and the village of Chesapeake as defendants.
A motion to dismiss was filed on Nov. 4 by Bennett’s attorney Lawrence E. Barbiere, of Mason.
“The claim against Russell Bennett … alleges he was responsible for the hiring, training and actions of Officer Gibson,” the motion states. “No other specific allegations are made with respect to the conduct of Chief Bennett, but he is lumped in with the term “Defendants” in several allegations of wrong doing.
However, no allegation is made that he was at the scene of the incident or participated in the incident in any way.”
The attorney contends that Bennett is entitled to qualified immunity with respect to the federal claims and statutory immunity with respect to the state claims.
However, Patrick’s attorney, Steven M. Magas of Loveland, filed a response stating Bennett should remain in the lawsuit.
“Defendant Bennett… was responsible for the ‘hiring, training and action of defendant Gibson,” according to the response.
“Bennett ‘failed to establish adequate policies and procedures to properly train defendant … Gibson … on the use of appropriate force, proper rules for stops and arrests, Ohio law relative to the operation of bicycles on the roadway and other police tactics.’
Defendant Bennett authorized, ratified, permitted and tolerated’ the attack on plaintiff by Gibson.”
There has been no ruling made in the dismissal motion.